On Thursday, we attended oral arguments in the Hawaii Supreme Court in a case that should be of particular interest to all you appellate procedure wonks.
A few days before expiration of the filing date for the notice of appeal, the parties stipulated to a two week extension of time. The trial court approved and ordered the stipulation. Problem is, the only authorized way for the parties to obtain an extension of time in a civil case before expiration of the notice of appeal deadline is to get a court “upon a showing of good cause” to order the extension. See Haw. R. App. P. 4(a)(4)(A). However, the parties’ stipulation and the court’s order did not contain these magic words.
The Intermediate Court of Appeals dismissed the appeal for lack of jurisdiction because the notice of appeal was not timely filed, because there was a stipulation and not a motion, and there was no showing of “good cause,” which means something “beyond the movant’s control.” Slip op. at 6-7 (citing Enos v. Pac. Transfer & Warehouse, Inc., 80 Haw. 345, 352, 910 P.2d 116, 123 (1996)). Chief Judge Nakamura dissented. The parties relied on the court’s order he concluded, and since the stipulation was entered into before the expiration of the deadline, if the court had denied the request, the appellant still had time to file. While he agreed with the majority that the trial court should not have approved of the stipulation, he would have held that there is an equitable exception to the time limits. The Supreme Court accepted certiorari.
Here is the is issue in the Judicary’s summary of the case:
In this case, the circuit court “approved and so ordered” an extension of time to file a notice of appeal. Relying on such order, Petitioners filed what they assumed to be a timely notice of appeal. The ICA, however, determined that the extension of time was erroneously granted, and Petitioners’ appeal was thus untimely. On application, Petitioners contend that they should not be penalized for relying on the circuit court’s order, which unbeknownst to them would later be deemed invalid. Petitioners argue that they are entitled to equitable relief and urge this court to adopt the “unique circumstances” doctrine to excuse their untimely notice of appeal.
More here (including the cert app) from Rebecca Copeland’s Record on Appeal.
Stream the oral arguments here:
(26 minutes) – or download the mp3 here. The arguments covered issues such as whether equity is applicable in a question of jurisdiction, whether a stipulation is sufficient or whether a motion is required to trigger Rule 4, and whether the trial court’s order should be presumed to be “for good cause” even though it did not contain the magic words.
Our prediction: the order dismissing for want of jurisdiction will be vacated, and the appeal remanded to the ICA for disposition on the merits. Despite the justices’ active questioning of both lawyers to probe the weak points of their respective arguments, we’re thinking that the court will conclude that although Rule 4 requires a motion followed by an order for “good cause,” a stipulation really is nothing more than an unopposed motion (both, after all, are requests by a party or parties for the court to take some action), and the result of either is an order of the trial court ordering the action. Also, we predict the court will conclude that despite the trial court’s order’s silence on “good cause,” the court should be presumed to have found good cause for an extension by virtue of the order, since a reviewing court should assume that a trial court acted in accordance with the rules unless there is a showing that it has not.
While issues of estoppel and equitable exceptions to the Rules of Appellate Procedure surely will have some influence (the first question asked of respondent’s counsel even before she introduced herself was “Let’s just start on one thing: you’re not really coming here with clean hands, are you? I think [petitioner’s] counsel makes a good argument — and I understand that legally you have to challenge the jurisdiction of the court — but golly, you guys signed a stip.”), the easier route for the court to take here would be to find that there’s been no claim that the trial court’s order did not comply with the “good cause” requirement, and that matters of jurisdiction are questions of substance, and do not rely exclusively on invocation of magic words. While it could have been done better, the stipulation and order procedure approved by the trial court and relied upon by both parties did not as a matter of substance violate the rule. That way, the court can avoid having to overrule or curtail the Enos opinion, can preserve the rule that jurisdiction cannot be extended by a stipulation without court approval, would avoid unnecessarily embarrassing the trial judge, and keep equitable notions (which are inherently fact based) and jurisdictional issues separate. Otherwise, appeals courts may have to resolve factual disputes regarding reliance, issues they would institutionally prefer to avoid.
And, the Supreme Court’s published opinion in this case would insure that lower courts and counsel will understand that there’s a clear way to do things, and a not so clear way to do things, so this circumstance is unlikely to occur.
Our recommendation when both sides agree that the notice of appeal deadline should be extended? The party seeking should file an unopposed motion that recites the “good cause” required, the other side files a statement of no opposition, and the draft order that is prepared for the court should expressly state the court agrees, and that “good cause has been shown.”
Stay tuned to see if our prediction is borne out.